Nationwide Mutual Insurance v. Figliomeni

147 A.D.2d 942, 537 N.Y.S.2d 387, 1989 N.Y. App. Div. LEXIS 1256

Opinion

— Judgment unanimously affirmed without costs. Memorandum: Special Term properly granted petitioner’s application to stay arbitration. Other issues raised by the parties may not be resolved in the context of a CPLR article 75 proceeding to stay arbitration (see, Matter of Kansas City Fire & Mar. Ins. Co. [Barnes], 115 AD2d 311). They must be resolved in an appropriate action. We note that the resolution of the issues raised may involve our decision in Manfredo v Centennial Ins. Co. (124 AD2d 979). In the interest of judicial economy and clarity, we note that, to the extent any language in Manfredo may be interpreted as being contrary to Insurance Law § 3420 (f) (2), it should not be followed. In Manfredo, the underinsured motorists coverage was inapplicable because the limits of bodily injury liability of the policy held by the tort-feasor were not less than the limits of bodily injury liability held by the insured claimant. (Appeal from judgment of Supreme Court, Onondaga County, Mordue, J. — stay arbitration.) Present — Dillon, P. J., Callahan, Den-man, Green and Lawton, JJ.